Development of tender documentation without discriminatory requirements and violations

According to Article 1 of the Law of Ukraine “On Public Procurement”, the organization of a tender begins with the development of tender documentation (hereinafter referred to as TD). The current legislation regulates the main requirements for TD. In particular, this concerns the absence of discriminatory requirements and violations. It is quite difficult to take into account all the requirements for public procurement documents. The lawyers of our company offer the development of tender documentation without discriminatory requirements and violations.

Discriminatory requirements and violations: what should be taken into account?

Article 22 of the Law of Ukraine “On Public Procurement” states that the customer cannot establish any conditions in the tender document, the purpose of which is to restrict competition and discriminate against tender participants.

Non-discrimination of participants is one of the important conditions of public procurement.

Among the basic rules that ensure the absence of discriminatory requirements and other violations:

• Equality of all participants.

The tender document should not contain items related to specific participants of a certain form of ownership or organizational and legal forms.

• Free access to information.

The customer is obliged to ensure that each participant has free access to information about public procurement.

• Prohibition of establishing discriminatory requirements for participants.

What requirements can be defined as discriminatory? The main feature of such requirements is the occurrence of negative consequences, namely: restriction of fair competition and discrimination of a certain category of participants.

Our lawyers recommend avoiding excessive or overly detailed requirements for the subject of the procurement in the tender document. Otherwise, the customer significantly narrows the circle of potential tender winners.

Among the specific requirements for the participant that can be characterized as discriminatory:

1. Presence of a specific number of workers (for example, more than 150).
2. Experience with similar contracts concluded with state or municipal enterprises.
3. Individualized requirements for the subject of public procurement.

Here are examples of discriminatory requirements in the tender documentation.

• The customer requires confirmation of experience in the implementation of two or more similar contracts.

This requirement is interpreted as discriminatory and unfounded. If the customer rejects the participant’s proposal due to failure to meet these conditions, such a decision is subject to appeal.

• The customer requires evidence of the implementation of a similar contract with additional detailed requirements (volume, types of work, etc.).

By establishing such requirements, the customer significantly limited the range of potential tender winners. Such requirements are discriminatory and can be appealed.

• The requirement from the customer is to provide copies of certificates regarding the characteristics of the subject of procurement.

Such requirements significantly limit the circle of participants. That is, only those public procurement entities that are directly related to specific manufacturers can be participants.

The presence of discriminatory requirements in the tender document leads to appeals and even annulment of the bidding results. That is why it is worth taking a responsible approach to the development of the tender document. Our lawyers will help you with this.

How to avoid discrimination in tender documents?

We suggest that you pay attention to how to avoid discriminatory requirements in tender documents.

• First, it is forbidden to indicate a specific brand or manufacturer. If you cannot avoid referring to specific trademarks, production methods, etc., it is necessary to record the expression “or equivalent”.
• Secondly, do not require participants to provide documentary confirmation of public information. If the information is publicly available, the participant is not obliged to provide documentary confirmation.
• Thirdly, the participant is not obliged to certify the materials submitted as part of the tender proposal with the seal and signature of an authorized person.

Thus, in the process of forming a draft tender document, avoid requirements that may be qualified as discriminatory. The most common requirements that may be challenged are: excessive or overly detailed requirements for the subject of the procurement and tender participants.

Supervisory authorities pay great attention to studying the customer’s requirements in tender documents. To avoid fines or cancellation of public auctions, we recommend using the professional support of our lawyers.

We look forward to your consultation!